Show Notes
“I was not 2.01% oppressive!” ___ TeeCo had 2 directors, each a 50% shareholder and Dir; half the units were held by P (one of the directors, who held that interest as trustee) and D3 (a company related to the other director, A): [2] – [6] P’s spouse acted as P’s agent throughout: [7] P sued seeking s 233 sale orders. A cross-claimed seeking s 233 sale orders and alleging a breach of duty by P: [8], [9] The relevant property had a value of $4.74m: [10] A JV was struck between P and A to buy the property: [20] – [27] TeeCo was soon after incorporated and exchanged contracts: [29] – [31] An attempt to finance the purchase failed: [32] – [55] The sale completed with bridging finance obtained by A, and funds provided by P: [65] Discussions about finance continued. Due to A’s self-employed status and delays with tax returns, an “on-loan” arrangement was struck to deal with A’s bridging loan: [66] – [75] P got the finance and on-lent to TeeCo with a 2.01% margin, putting this to A and proceeding on that basis: [80], [81] In time, A grew dissatisfied with the margin: [87] – [90] A said they had thought the 2.01% margin was a lender-required necessity. On learning it was not, A objected: [100] – [107] P pressed for funding to pay TeeCo’s strata levies and other costs. A resisted. The Owners Corp sued: [108] – [128], [145] The parties fell into dispute, A asserting P had engaged in “profiteering” with the 2.01% margin: [130] – [144] Each party was critical of the other’s evidence: [152], [153] A alleged inter alia that P (incl by their spouse) breached their duties to TeeCo and to A by suggesting the 2.01% was a necessity: [179], [180], [184] The evidence showed the parties initially contemplated A’s side paying 4.5%. The lender lent to P at its rate (later confirmed at 2.49% - leaving the 2.01% margin for TeeCo to pay): [214] – [216] Relevantly, this arrangement was discussed with the idea of a prompt refinance being the goal of both: [221] Key issue: whether P represented to A that the lender *required* the margin that was eventually applied: [233] A was unable to convince the Court that P induced A into their misapprehension that the lender *required* a margin of 2.01%: [244] This was fatal to both A’s oppression claim and breach of duty claim: [246] This left P to progress their oppression claims against A in relation to failures to engage with payment of levies, delaying finance for the project with slowness in getting tax returns etc: [255] A’s failure to engage with P about TeeCo’s debts was oppressive: [276], [277] Some of P’s other complaints about A were not oppressive: [286], [295] Noting the deadlock, the Court resolved the relief should bring the relationship to an end: [305] A’s attempt to seek an order that they buy the property was not made in part due to A’s oppressive conduct: [333] P got their buyout orders: [344] ___ If you made it this far please head to www.gravamen.com.au #auslaw #coffeeandacasenote #gravamen
More from Coffee and a Case Note
In 2026 James had the opportunity to sit down with Ben Hudson from the Unbilled Unfiltered podcast for a wide-ranging discussion about legal practice, the lawyers James is "deeply unimpressed" by, and what role a failed rap career plays for a litigator. You can find the podcast here: https://www.unbilledunfiltered.com/
“Put me back as director and correct the share register!” ___ P sought an interlocutory injunction. P said they had been invalidly removed as Dir of a Co, and their shareholding improperly diluted: [1], [2] P said D had taken control of the Co to make it sell its business and property: [1] P helped establish the Co, contributing assets: [7](1) – (2) There was past tension between P and a former Dir (now dead) leading to D’s involvement: [7](5) – (6) In August 2026 resol’s were passed including appointing P as Dir: [7](10) Later, forms were lodged suggesting P was removed as Dir, despite not having resigned nor having been provided with notice of any meeting re P’s potential removal as Dir: [7](12) P was then excluded from the Co’s mgmt: [7](13) Evidence suggested D was in Thailand: [7](17) In Sep 2026, P visited the Co’s offices only to be told the Co’s business had been sold, with responses to some Qs being “above [the answerer’s] paygrade”: [8] (The evidence was incomplete re the progress of any potential sale: [10]) P’s lawyer tried to inspect the Co’s books and records at its agent’s office and was turned away: [9] The Court considered the relevant law noting P had to show (i) a prima facie case, and (ii) that the balance of convenience favoured relief: [3] – [5] P’s claims were broadly stated; unauthorised dealings and “unwarranted oppression”: [12] The injunction sought was to prevent the Co dealing with its business and real property: [13] The Court found it arguable that (i) P was improperly removed as Dir, and (ii) an unauthorised agreement may have been improperly made with a 3rd party to sell the Co’s business: [14], [15] Further, it was arguable that (iii) any dist’n of sale proceeds would not be in a proportion with the true shareholding in the Co: [14] 1st re balance of convenience: there was a prospect of a sale completing and proceeds flowing to D out of jurisdiction, radically altering the status quo: [15] 2nd re BoC: even though the orders might complicate a possible sale and the Co’s mgmt, notice could be given to third parties and there was liberty for parties to apply – largely curing this issue: [16] The relief sought by the P was granted: [17] ___ Please follow leading partnership and shareholder disputes lawyer James d'Apice, Coffee and a Case Note, and Gravamen on your favourite platform. www.gravamen.com.au
“I own 40% of you, and I’m winding you up!” ____ The Ps sued to wind up a Co pursuant to s461(1)(k), the “just and equitable” basis. The Co opposed: [1], [4] The Ps held 40% of the Co’s shares, an SPV incorp’d for residential development: [1], [2], [157] The remaining 60% to 2 entities whose controlling minds were also Dirs of the Co: [7] – [11] The Ps referred to: apparent insolvency of the Co, a breakdown of relationships, and “exorbitant” mgmt fees “gouged” by an entity related to 2 of the Co’s Dirs: [3], [149] – [151] In 2021 the Ps and the Co had entered into an arrangement where the Ps loaned ~$5m for buying the property, to be repaid from profits following development: [12] In December 2021, the Co bought the property for ~$10m; funded in part by the Ps’ loan: [13] – [15] The Dirs of the Co incorp’d OtherCo to provided management services to the Co; $30K per month. The Ps were not told of this: [16] – [20] From 2022, the Co undertook various steps (including running NSWLEC proceedings) to obtain relevant DAs: [21] – [28] Rent was collected on the Co’s property from 2022. It was not paid to the Co but was paid to OtherCo: [29] – [31] The Ps initially sued seeking repayment of the $5m. They lost: [32] – [34] The Ps took the view the development was “unviable”; likely unprofitable. The Court accepted this: [43], [95] The Ps’ experts’ figures suggest the development would be worth $22m, for a cost of $35m; a loss of ~$13m: [45] – [88] The Court accepted there was no possibility of the Co obtaining external finance: [110], [158] Nor was it likely finance could be obtained from a related party: [117] The Court noted insolvency may be relevant to a just and equitable wind up application: [118] After extended considering of the relevant tests for insolvency, and with the assistance of expert evidence, the Court accepted the Co was likely cash flow and balance sheet insolvent: [148] The Court lacked confidence in the conduct of the Co’s affairs, such that it was just and equitable that it be wound up: [164] Where the Co was not run as a quasi-partnership, the fact that there was a breakdown in the relationship of trust and confidence between the parties was not sufficient to obtain a winding up order: [169] – [176] The Court found there were no alternative s 467(4) remedies: [177] – [195] The Court ordered that the Co be wound up and that the Ps’ legal costs would be costs in the winding up: [199] ___ Please look out for James d'Apice, Coffee and a Case Note, and Gravamen on your favourite platform. www.gravamen.com.au #auslaw #coffeeandacasenote #gravamen
“You breached the shareholders agreement, so transfer your shares to me!” ___ P and D were shareholders in a Co. P (who held 40%) sued D (who held 60%) alleging D’s breaches of the SHA entitled P to have D’s shares transferred to P: [1] – [4], [7] This breaches, said P, were D taking unauthorised loans and D’s granting security over its shares in the Co: [2] The Co did scaffolding work and was of some size; ~$11m annual revenue, ~55 employees: [6] The Co had developed out of a business operated by D, with P’s controlling mind acting as director and manager: [9] No party challenged the SHA’s validity. It applied: [17] D licensed its IP and provided services to the Co – for payment – over the years: [19], [20] The D’s work for the Co included, necessarily, having some control over the Co’s bank account. The D (whether by its agents or otherwise) made payments from these accounts: [21], [22] Over time a loan balance grew. By 2025 D was indebted to the Co for ~$1.9m: [23] – [27] P’s consent was not sought for the advances that led to this balance. i.e. they were made without P’s approval: [28] In 2025 an insolvency risk loomed for D. It missed some superannuation payments owed to its employees: [29] P issued D a default notice pursuant to the SHA in relation to the loan balance. D accepted the notice was properly issued [30] – [36] The issuing of the notice commenced the SHA’s default sale process: [34] In 2022 D had granted a security of all of its assets (i.e. including its shares in D): [37] In 2025 P discovered the security via a PPSR search conducted as part of prep for P acquiring D’s shares: [39] Shortly after this discovery, P issued a security default notice pursuant to the SHA: [40] Although the breach was remedied after the notice was issued, P had commenced the default sale process beforehand: [41] – [46] Despite D’s contrary assertion, the commencement of other legal proceedings by the Co was not a termination of the SHA – and even if it was, P’s rights pursuant to the default notices survived: [47] – [48] The Court then considered whether specific performance was the appropriate remedy. The remedy of specific performance is discretionary: [49] Damages were an inadequate remedy for the P’s loss. Prima facie: spec perf should be ordered for breaches concerning shares in a private Co: [54] D argued that the SHA had a valuation method, enabling damages to be quantified. The Court disagreed finding the control premium would not be accounted for with that method: [55] – [57] D tendered no evidence of its capacity to remedy the defaults: [62] No hardship issues stood in way of the Court exercising its discretion to order spec perf: [78] P was entitled to spec perf of the share transfer: [79] ___ Please follow James d'Apice, Coffee and a Case Note, and Gravamen on your favourite platform. www.gravamen.com.au
In July 2026, James has an opportunity to sit down with Hall & Wilcox partner and host of the Hall & Wilcox podcast "What's in a name?" to talk about diversity, inclusiveness, and using one's privilege for the benefit of all. You can find the original podcast here: https://hallandwilcox.com.au/news/cultural-inclusion-conversations-whats-in-a-name-season-2/